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2020 (1) TMI 499 - AT - Income TaxBogus LTCG - addition u/s 68 - alleged suspicious sale transactions in shares of LDPL, which generated exempted long term capital gains to the assessee - HELD THAT - Either the assessee entered into solitary transaction resulting into long term capital gain or prior to the solitary transaction, the assessee was neither engaged in the purchase and sale of shares nor subsequent to earning of long term capital gain, the assessee was found to be engaged in the purchase and sale of shares. These facts are clearly distinguishable from the facts of the case in hand. As mentioned elsewhere, the assessee is a habitual investor having portfolio of investment in shares in crores and is still holding investment in shares in several crores and is constantly engaged in investing in shares of various companies. Considering the vortex of evidences, we are of the considered view that the assessee has successfully discharged the onus cast upon him by provisions of section 68 of the Act and as mentioned elsewhere, such discharge is purely a question of fact. We, accordingly, direct the Assessing Officer to accept the long term capital gain declared as such. - Decided in favour of assessee.
Issues Involved:
1. Addition made under Section 68 of the Income Tax Act, 1961 by treating long-term capital gain as non-genuine. 2. Addition of 2% of the alleged bogus long-term capital gain as commission. Issue-wise Detailed Analysis: 1. Addition made under Section 68 of the Income Tax Act, 1961 by treating long-term capital gain as non-genuine: The primary grievance of the assessee pertains to the addition of ?5,70,91,750/- made under Section 68 of the Income Tax Act, 1961. The Assessing Officer (AO) disbelieved the transaction of the sale of shares of Lifeline Drugs and Pharma Ltd (LDPL) and suspected that the steep rise in share price was manipulated by a cartel of brokers. The AO relied heavily on the report of the Investigation Wing, Kolkata, to conclude that the long-term capital gain earned by the assessee was not genuine and was a means to book unaccounted income without paying taxes. The AO noted that LDPL had no significant business activity or profits to justify the rise in share price and questioned the splitting of shares. The assessee provided supporting documentary evidence during the assessment proceedings. However, the AO dismissed these documents, relying instead on general observations and the modus operandi of entry operators. The AO concluded that the assessee had failed to discharge the onus cast upon him by Section 68 of the Act and made the addition. The Tribunal observed that the assessee is a habitual investor with substantial investments and consistent transactions over the years. The AO accepted other transactions of the assessee except for those involving LDPL. The Tribunal emphasized that the initial burden of proof lies on the assessee to justify his returned income, and if the AO gathers any evidence, it must be confronted to the assessee for an explanation. In this case, the assessee furnished all necessary documentary evidence to discharge the initial burden. The Tribunal noted that LDPL, now known as Arihant Multi Commercial Ltd, was not a shell company and had significant revenue and assets. The AO failed to produce any material evidence to disprove the genuineness of the documentary evidence provided by the assessee. The Tribunal referred to several judicial decisions, including those of the Hon'ble Supreme Court, which emphasized that additions based solely on third-party information without independent verification by the AO cannot be sustained. The Tribunal concluded that the assessee had successfully discharged the onus cast upon him by Section 68 of the Act and directed the AO to accept the long-term capital gain of ?5,70,91,750/- as genuine. 2. Addition of 2% of the alleged bogus long-term capital gain as commission: The AO assumed that the assessee must have paid a 2% commission to entry providers for the alleged bogus long-term capital gain and made a further addition of ?11,41,835/-. Since the Tribunal accepted the genuineness of the long-term capital gain, it found no merit in the consequential addition of ?11,41,835/- and directed its deletion. Conclusion: The Tribunal allowed the appeal filed by the assessee, concluding that the additions made by the AO were based on surmises, conjectures, and presumptions without any substantial evidence. The Tribunal emphasized that the assessee had provided sufficient documentary evidence to prove the genuineness of the transactions, and the AO failed to disprove it with credible evidence. Consequently, the long-term capital gain of ?5,70,91,750/- and the related commission addition of ?11,41,835/- were directed to be deleted.
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